Expressive Ends: Understanding Conversion Therapy Bans

Harvard Law School; Yale University, Faculty of Arts & Sciences, Department of History

Date Written: August 8, 2016

Abstract

LGBT rights groups have recently made bans on conversion therapy, a practice intended to reduce or eliminate a person’s same-sex sexual attractions, a primary piece of their legislative agenda. However, the statutes only apply to licensed mental health professionals, even though most conversion therapy is practiced by religious counselors and lay ministers. Conversion therapy bans thus present a striking legal question: Why have LGBT rights advocates expended so much effort and political capital on laws that do not reach conversion therapy’s primary providers? Based on archival research and original interviews, this Article argues that the bans are significant because of their expressive function, rather than their prescriptive effects.

The laws’ proponents are using the statutes to create a social norm against conversion therapy writ large, thus broadening the bans’ reach to the religious practitioners the law cannot directly regulate. LGBT rights groups are also extending the bans’ expressive message to support the argument that sexual orientation is immutable and to reverse a historical narrative that cast gays and lesbians as dangerous to children. These related claims have been central to gay rights efforts for much of the twentieth century and continue to shape LGBT rights battles.

While the expressive effects of the bans are important, the laws and the campaign around them may have a negative effect. LGBT rights organizations working on the laws do not distinguish between conversion therapy efforts aimed at changing sexual orientation and those targeting behavior. This is troubling, not only because it fails to acknowledge the needs of same-sex attracted individuals who wish to live in accordance with their religious beliefs, but also because it reinforces a limited view of gay identity. Many within the LGBT movement contest the identity model that legal advocates have championed, and that conception of sexual orientation may in fact hinder the movement’s long-term goals. Differentiating between the various types of conversion therapy would help remedy this by emphasizing the law’s need to respect and protect sexual decisions and expressions, as well as create a platform from which to promote a more expansive vision of LGBT rights.